Citation Nr: 9912248
Decision Date: 05/03/99 Archive Date: 05/12/99
DOCKET NO. 95-99 107 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Philadelphia, Pennsylvania
THE ISSUE
Entitlement to an increased evaluation for post-traumatic
stress disorder (PTSD), currently evaluated as 50 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. Shawkey
INTRODUCTION
The veteran served on active duty from November 1966 to
November 1968. His service included a tour in Vietnam.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from an August 1994 RO rating decision that
increased the veteran's service-connected PTSD from 10 to 30
percent disabling. The RO subsequently increased this
evaluation to 50 percent in June 1995.
In May 1998 the veteran filed an application for a total
rating based on individual unemployability. This matter is
referred to the RO for appropriate action consistent with
this decision.
FINDING OF FACT
The symptoms of PTSD render the veteran demonstrably unable
to obtain or retain substantially gainful employment.
CONCLUSION OF LAW
The criteria for a total disability rating due to the
veteran's PTSD have been met. 38 U.S.C.A. § 1155 (West
1991); 38 C.F.R. §§ 4.16(c), 4.132, Code 9411 (1996).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Factual Background
In October 1984 the veteran filed a claim of service
connection for PTSD. This claim was granted by the RO in May
1985, and a 10 percent evaluation was assigned.
The evidence shows that the veteran underwent VA psychiatric
examinations in 1986, 1988 and 1991.
In October 1993 the veteran was hospitalized at a VA medical
facility for treatment of a 25 year drug dependence habit.
It was noted at this time that the veteran was unemployed and
homeless. He was discharged in November 1993 and was
immediately admitted to a VA domiciliary program for 30 days.
In November 1993 the veteran filed a claim for an increased
evaluation for his service-connected PTSD. He said that his
disability was getting worse and he had severe flashbacks,
nightmares and anger reaction. He also said that he had a
startled reaction.
Upon the veteran's release from the VA domiciliary program in
December 1993, he began a 96 day inpatient PTSD program. His
problems at the time of admission included intrusive
recollections and nightmares of traumatic combat experiences,
intense psychological distress at exposure to events
resembling the trauma, efforts to avoid situations, thoughts
or feelings associated with trauma, sleep disturbance,
estrangement from others, irritability, outbursts of anger,
difficulty concentrating and survivor's guilt. While in the
program the veteran made significant progress in areas of
trust and survivor's guilt. He was discharged in March 1994.
In June 1994 the veteran underwent a VA psychiatric
examination. At the examination the veteran said that going
to Vietnam and killing people had been a tremendous shock for
him. He said that he had also been shocked by the presence
of corpses and wounded soldiers. He said that he began
drinking shortly after arriving in Vietnam in order to ease
his shock and pain. He also said that following service he
worked for a steel company, but that he had been fired in
1993 after the company found out that he was on drugs. His
symptoms included severe drug and alcohol dependency,
episodes of rage and anger, sleep disorder, intrusive
thoughts, startle reaction that was sometimes severe, and
reminders of combat and Vietnam by sudden noises, crowded
places, heavy rains, helicopters and airplanes. He said that
these reminders had not caused flashbacks in recent years.
He also reported being continually depressed since service
and spending most of his time alone. He said that he felt
that he had no real friends that he could trust and had some
very serious doubts about his future. On examination the
veteran was very depressed. He wore dark glasses in the
examination room and sat slumped in a chair. He had no
psychotic symptoms and was of normal intelligence. He was
diagnosed as having PTSD that was chronic and severe. He was
given a global assessment of functioning (GAF) score of 50.
The examiner noted that the veteran had considerable
difficulty in social and occupational areas, had no friends,
and was currently unable to work.
In an August 1994 rating decision, the RO increased the
veteran's service-connected PTSD from 10 to 30 percent
disabling.
On file is a medical report from the coordinating doctor a VA
PTSD residential program that the veteran had participated in
from August 1994 to November 1994. In this report the doctor
said that the veteran successfully completed the program and
had gained insight into his behavior and learned more
appropriate ways of coping. He said that the veteran
realized that he would continue to have PTSD symptoms and
would need continued treatment. He said that the veteran
would experience nightmares and distressing recollections
about his traumatic experiences in Vietnam and about the
loss/death of close friends there. He said that the veteran
tended to isolate himself at times, and tended to avoid
certain situations that reminded him of Vietnam. He also
said that the veteran could quickly move into a state of
hyperarousal. He went to state that veteran's PTSD was
chronic and impaired his ability to form relationships, to
interact socially with others, and to find or keep steady
employment.
At a hearing at the RO in January 1995, the veteran testified
that rainy and foggy weather affected him and reminded him of
being in Vietnam again. He said that he realized from the
PTSD program that he had been self medicating himself from
his experience. He said that he had not used any substance
since 1993. He said that he had worked the night shift to
avoid people. He said that it was hard to get a job and that
he was tired of people slamming doors in his face. He said
that he had a problem trusting people. He also said that he
was taking medication for his psychiatric disability and
attended weekly group therapy. He said that he had a problem
sleeping at night.
On file is a VA progress note dated in February 1995 that
reflects the veteran's complaint of nightmares and flashbacks
as well as having difficulty trusting people. The veteran
was noted to be very quiet during the session.
At a VA examination in February 1995, the veteran was
observed having a violent startle reaction. The examiner
stated that during the interview the latch on his office door
clicked open slightly and caused the veteran to jump to his
feet and whirl around and stare at the door and then at the
examiner. The examiner said that after this incident the
veteran became very depressed and later walked out of the
examination room before the examination was entirely over.
Symptoms included depression and discouragement, isolation,
sleep problems, nightmares, feelings of suicide, severe
startle reaction, intrusive thoughts and exhaustion. On
examination the veteran was disturbed and depressed and
displayed several episodes of crying during the examination.
He was despondent and discouraged. His memory was normal
except for an inability to remember certain events in Vietnam
as well as the names of friends in Vietnam. The veteran was
found to have intrusive thoughts that were somewhat
persistent. The examiner diagnosed the veteran as having
PTSD that was chronic and severe. The examiner noted that
the veteran had been treated several times without apparent
improvement. He also diagnosed the veteran as having history
of severe drug and alcohol abuse in remission for two years,
and severe depression secondary to PTSD, with suicidal
thoughts. He gave the veteran a GAF score of 50.
A March 1995 VA progress note shows that the veteran was
feeling bad and complained of not being able to do anything.
He complained of frequent nightmares and flashbacks,
isolation and intrusive thoughts. He reported that at the VA
examination (in 1995) he had had a bad thought and had to
leave in a hurry.
VA treatment records dated in April 1995 and June 1995
reflect the veteran's continuing complaints of flashbacks and
nightmares and suicidal thoughts. One record notes that the
veteran appeared depressed and was on the verge on crying.
It was noted in a June 1995 record that the veteran was
unemployable, paranoid and suspicious. It was further noted
that the veteran isolated himself, was not able to
concentrate, and that his mind wandered.
In a June 1995 rating decision, the RO increased the
veteran's service-connected PTSD from 30 to 50 percent
disabling.
In July 1995 the veteran was readmitted to a VA medical
facility with complaints of intrusive memories, nightmares,
social isolation, irritability, outbursts of anger, sleep
disturbance, avoidance of reminders of combat, hypervigilance
and poor concentration. He was treated with medication and
psychotherapy. He reported some improvement in his symptoms
at the time of his discharge in October 1995.
According to a September 1996 VA treatment record, the
veteran was depressed, bored, disgusted, tired and was no
longer going to therapy. The record also notes that he drank
beer on occasion.
An October 1996 treatment record notes that the veteran had
recently been jailed because of fighting caused by paranoid
ideation.
According to a January 1997 treatment record, the veteran had
served one month in jail because of "terroristic threats."
VA treatment notes in February and March 1997 reflect
diagnoses of PTSD with psychotic features.
VA treatment record in April and July 1997 reflect diagnoses
of PTSD and psychosis.
On file is a July 1997 VA psychology intake assessment which
states that the veteran had been discharged from a VA PTSD
unit in October 1995 and had been living with his mother ever
since. The assessment shows that he had held four part-time
jobs since October 1995 and had been very depressed during
that period. It also reflects the veteran's report of a
suicide attempt. The veteran was noted to be close to tears
at one point in the interview.
At a VA examination in October 1997 the veteran said that he
had worked for a steel company for 20 years before being
terminated due to drug use. He said that for the past 10
years he had worked at odd jobs and was currently delivering
parts for an auto store part-time. He said that he had had
the job since June, but felt that it was in jeopardy because
he had recently lost his temper. He said that he had lost
many jobs due to PTSD symptoms and/or drug abuse. Findings
revealed the veteran to be causally dressed. He wore
sunglasses during the interview. His speech was easily
understood and he was cooperative. His affect was subdued
with some tearfulness when upsetting material was discussed.
He was oriented times three with slowed cognitive function.
Recent memory was somewhat impaired. Insight and judgment
was poor to fair. The veteran was hypervigilant with an
exaggerated startle response to noise. It was noted that the
veteran endorsed a number of symptoms associated with PTSD
such as crowd avoidance, avoiding close relationships,
flashbacks, nightmares and sleep problems. He was diagnosed
as having chronic PTSD and was given a GAF score of 45. The
examiner stated that the veteran was employable on a part-
time basis in a low stress environment. He also stated that
the veteran's social functioning was seriously impaired and
his occupational functioning was moderately to severely
impaired.
In a statement in May 1998, the veteran's former employer
(the Daily Local News) said that the veteran had resigned due
to a dispute over taking time off.
II. Legal Analysis
The veteran's claim for an increased evaluation for PTSD is
well grounded, meaning plausible. The record shows that the
RO has properly developed the evidence, and there is no
further VA duty to assist the veteran with his claim.
38 U.S.C.A. § 5107(a).
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.
The severity of the veteran's PTSD must be assessed in the
context of its entire history. 38 C.F.R. § 4.1; Schrafrath
v. Derwinski, 1 Vet. App. 589 (1991).
During the course of the veteran's appeal, the regulations
pertaining to psychiatric disabilities were revised. The
veteran's PTSD was initially evaluated under 38 C.F.R.
§ 4.132, Code 9411 (1994-1996). This code provides for a 50
percent evaluation is assigned when the ability to maintain
effective or favorable relationships with people is
considerably impaired and by reason of psychoneurotic
symptoms the reliability, flexibility and efficiency levels
are so reduced as to result in considerable industrial
impairment. A 70 percent evaluation is assigned when the
ability to establish or maintain effective or favorable
relationships with people is severely impaired and the
psychoneurotic symptoms are of such severity and persistence
that there is severe impairment in the ability to obtain or
retain employment. A 100 percent evaluation requires that
the attitudes of all contact except the most intimate must be
so adversely affected as to result in virtual isolation in
the community, or that there be incapacitating psychoneurotic
symptoms bordering on gross repudiation of reality with
disturbed thought or
behavioral processes associated with almost daily activities
such as fantasy, confusion, panic and explosions of
aggressive energy resulting in profound retreat from mature
behavior. Finally, if the veteran is demonstrably unable to
obtain or retain employment, a total rating is warranted.
On November 7, 1996, the rating criteria for PTSD were
revised and are now found in 38 C.F.R. § 4.130, Code 9411.
This revised code provides for a 50 percent evaluation for
occupational and social impairment with reduced reliability
and productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory
(e.g., retention of only highly learned material, forgetting
to complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships. A 70 percent evaluation requires occupational
and social impairment, with deficiencies in most areas, such
as work, school, family relations, judgment, thinking, or
mood, due to such symptoms as: suicidal ideation;
obsessional rituals which interfere with routine activities;
speech intermittently illogical, obscure, or irrelevant;
near-continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with period of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); inability to establish and maintain effective
relationships. A 100 percent evaluation requires total
occupational and social impairment, due to such symptoms as:
gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names of
close relatives, own occupation, or own name.
As the veteran's claim for an increased rating for PTSD was
pending when the regulations pertaining to psychiatric
disabilities were revised, he is entitled to the version of
the law most favorable to him. Karnas v. Derwinski, 1
Vet.App. 308 (1990). Here, either the amended or current
rating criteria may apply, whichever are most favorable to
the veteran.
The evidence shows that the veteran's PTSD disability has
worsened over the years, and that such worsening
symptomatology more nearly approximates the criteria for a 70
percent evaluation under the old rating schedule. 38 C.F.R.
§ 4.132, Code 9411. Such a worsening is evident in part due
to evidence which shows that the veteran's psychiatric
disability now involves a psychotic component. In this
regard, the examiner who conducted the 1995 VA examination
said that he had spoken with the veteran's treating physician
who had described some episodes which seemed to border on
what could be described as psychotic. VA progress notes in
1996 reflect diagnosis of PTSD and psychotic features, and VA
progress notes in 1997 reflect diagnoses of PTSD and
psychosis. This evidence is in contrast to a 1994 VA
examination report where it is noted that the veteran did not
have psychotic symptoms. In addition, the veteran's GAF
score has decreased over the years with scores of 50 and 51
in 1995 to a score of 45 in 1997.
Turning to the criteria for a 70 percent evaluation under the
old rating schedule, there must be severe impairment in the
veteran's ability to establish and maintain effective or
favorable relationships with people. 38 C.F.R. § 4.132, Code
9411. The evidence in this case shows that the veteran has
difficulty getting along with other people and spends most of
his time alone. Numerous medical records list isolation as
one of the symptoms of his PTSD. According to a June 1994 VA
examination report, the veteran spent most of his time alone
and had no friends. His socialization at that time was noted
to be extremely poor. It was also noted that he was
separated from his wife and saw his children occasionally.
Similarly, on a VA examination report in 1995, it is noted
that the veteran had alienated everyone and had no friends.
The examiner stated that the veteran had absolutely no one
who was close to him. In a more recent examination in 1997,
the veteran's social functioning was found to be severely
impaired.
In regard to employability, it is clear from the evidence
that the veteran's PTSD symptomatology severely impairs his
ability to obtain or retain employment. In a November 1994
discharge summary completed by the coordinating doctor of a
PTSD residency program, the doctor said that the veteran's
PTSD was chronic and had resulted in an impairment in his
ability to find or keep steady employment. In February 1995,
a VA examiner said that the veteran had a serious impairment
in social and occupational functioning. And in a 1997 VA
examination report, the examiner assessed the veteran as
having moderate to severe impairment in occupational
functioning and said that he could work part-time in a low
stress environment. In this regard, the examiner also noted
that the veteran had lost many jobs due to his PTSD symptoms
and/or drug abuse. Indeed, it is noted on a March 1997 VA
progress note that the veteran had applied for a job, but
turned it down after discovering that the owners for whom he
would be working for were Vietnamese.
Although it is noted that the veteran was employed part-time
in an auto parts store at the time of the 1997 examination,
it is important to keep in mind that two of the most
important determinants of disability are time lost from
gainful work and decrease in work efficiency. 38 C.F.R.
§ 4.130 (1996). Sporadic part-time work during recent years
represents a significant decrease in the veteran's work
efficiency and is not considered to be substantial or gainful
employment, especially in view of the veteran's prior 20 year
employment at the steel company. In addition, although the
veteran was employed part-time at an auto parts store in
1997, he told the examiner at that time that he felt that
this job was in jeopardy since he had recently lost his
temper. Moreover, the record contains a 1998 statement from
yet another employer (the Daily Local News) to the effect
that the veteran had resigned due to a dispute over taking
time off. It is evident from this evidence that the veteran
has not been able to maintain even part-time employment.
Where, as in the instant case, the only compensable service-
connected disability is a
mental disorder, and such mental disorder precludes a veteran
from securing or following a substantially gainful
occupation, the mental disorder shall be assigned a 100
percent schedular evaluation under the appropriate diagnostic
code. 38 C.F.R. § 4.16(c) (1996).
ORDER
A total schedular evaluation (100 percent) for PTSD is
granted.
G. H. SHUFELT
Member, Board of Veterans' Appeals